A сlaim with likely, known congenital weaknesses foreshadowing doubtful survival, for fire damage to a tug in a shipyard on August 25, 1946, incubated through the passage of time into one of *949 fairly healthy proportions when it was finally tried nine years later in January 1955. For in the meantime, much grist had been milled.
Where, in 1946, Belden v.
This circumstance affected Court and counsel so much so that this mutual preoccupation with contributory negligence, as such, and its consequence, seemingly allowed the real problem to gо unnoticed.
The tug Lucinda Clark was on a marine railway in the shipyard undergoing contract repairs, including the removal and partial replacement of a bent engine exhaust pipe running up through the top decking of the wooden deckhouse. On evidence fully sufficient, Galena Oaks Corp. v. Scofield, 5 Cir.,
On leaving the tug an hour later, he instructed the Chief Engineer to be cautious about the possibility of fire, and around 5:00 p. m. the Chief Engineer, seeing smoke in the same area, repeated the negligent sequence of 1:00 p. m. and 3:00 p. m. by dousing a little water in this area under the mistaken, and negligent, belief that the fire was extinguished. Within an hour, all hands had gone ashore with no notice to the shipyard of either recurrence of the fire. Near 8:00 p. m. the shipyard’s night watchman discovered the tug afire, but despite strenuous efforts by shipyard personnel and the local-fire department* the fire was out of control and extensive damagе 4 was done.
By extensive oral record. statements at the conclusion of arguments, the Judge made it clear that he then considered both shipyard negligent and tug owner contributorily negligent, 5 and, apparently of the view that, following Louisiana law for a non-maritime tort, contributory negligence would bar recovery entirely, he announced his direction to enter judgment for the defendant shipyard. On plaintiff tug owner’s motion for new trial, Hedger Transportation Corp. v. United Fruit Co., supra, and the interment of Belden v. Chase, suprа, was pressed heavily to secure a judgment for half damages under the usual admiralty rule of mutual fault. Overruling this, the Court escaped the problem by then holding that the shipyard’s negligence was a condition, 6 not a cause.
*951 We agree with the tug owner that, the fire having been caused by the shipyard’s negligence and its errors in failing properly to extinguish it being exactly of the same kind as the tug owner’s, the finding of “condition” is clearly erroneous and cannot stand.
Though we join with the Second and Third Circuits in applying the maritime doctrine of divided dаmages, cf. Hartford Accidents & Indemnity Co. v. Gulf Refining Co., 5 Cir.,
This is so because the principle applicable is not the ordinary one of contributory negligence which relates to the use of due care to avoid the happening of the event (here the fire) giving rise to the initial harm. Rather it is, or is akin to, the one universally 7 applied for both torts and contracts, generally described as the doctrine of avoidable con *952 sequences and under which a plaintiff, with an otherwise valid right of action, is denied recovery for so much of the losses as are shown to have resulted from failure on his part to use reasonable efforts to avoid or prevent them. The contrast is most vivid in contemplating a traditional common law situation. “If the plaintiff by negligent action or inaction before the defendant’s wrongdoing has been completed has contributed to cause actual invasion of plaintiff’s pеrson or property, the plaintiff is wholly barred of any relief. The doctrine of avoidable consequences comes into play at a later stage. Where the defendant has already committed an actionable wrong, whether tort or breach of contract, then this doctrine limits the plaintiff’s recovery by disallowing only those items of damages which could reasonably have been averted * * * contributory negligence is to be asserted as a complete defense, whereas thе doctrine of avoidable consequences is not considered a defense at all, but merely a rule of damages by which certain particular items of loss may be excluded from consideration * * * ” [emphasis the author’s], McCormick on Damages, West Publishing Company, 1935, Chapter 5, Avoidable Consequences, pages 127 et seq.; see also 61 Harvard Law Review (1947), 113, 131-134, Developments in Damages. Recognized universally, 8 it is nonetheless understandable that variable conceptual explanations 9 arе given ranging from contributory negligence, as such, lack of proximate cause and a so-called “duty” to mitigate. Admiralty *953 courts are not free from this confusion. 10 But the result desired has a more adequate explanation for, “In such cases it is not true that the injured person has a duty to act nor that the conduct of the tortfeasor ceases to be a legal cause of *954 the ultímate harm; but recovery for such harm is denied because it is in part the result of the injured person’s lack of care and public policy requires that pеrsons should be discouraged from wasting their resources both physical or economic”, Restatement of the Law of Torts, § 918, page 602.
So far as the original fire is concerned, there was, of course, no basis for imposing any or all or part of its consequences on the tug owner. The shipyard, on the basic fact findings of the District Court freed by us, as clearly erroneous, of the conclusion of “condition”, was and remains clearly liable for this and all damage proximately caused by this fire.
The tug ownеr’s action subsequent to that related not to liability but to a possible reduction in the award to the extent that its failure to take reasonable steps augmented the loss. This was, then, a question of diminution of damages, á matter strictly speaking, reserved by stipulation to a later day and not then before the Court, and, in any event, not adequately assayed 11 in the light of these applicable principles.
The judgment of dismissal must,, therefore, be reversed and remanded with directions to enter interlocutory finding for the plaintiff tug owner, South-port Transit Company, and to tаke further, other and not inconsistent proceedings for the determination, 12 allowance and award of damages and the entry of final judgment thereon. On the remand, however, the Court must regard carefully that the tug owner is the innocent party whose property was damaged, to some extent at least, by negligent performance of its contract by the shipyard. Under the teaching of the doctrine of avoidable consequence, a substantial burden is therefore heavy on the wrongdoer to establish that prudence called for action by the tug owner at one or more of these stages; and, that had it been taken, the resulting damage would have been substantially different. Nor will inability satisfactorily to differentiate between the consequences of the tortfeasor’s conduct and the innocent injured party’s inaction be measured or its significance determined by common law notions which might deny recovery altogether. 13
*955 This is a maritime cause of action for negligent performance of a maritime contract in which the rigors of contributory negligence as a bar are ameliorated, Pope & Talbot, Inc., v. Hawn, supra, by the admiralty concept of divided damage, and if, on a full trial, the Court concludes that prudence called for action by the tug which was not taken, but that the damage flowing therefrom cannot be separated with some reasonable certainty, then all damages should be divided. For unlike many situations in which a tortfeasor’s wrong has spent itself, and what ocсurs later is from simple nonaction by the property owner, the shipyard’s negligence here, in a very real sense, was still at work — not alone in consequences, but, from the nature of fire, in new destruction as this concealed fire continued to spread. Moreover, to the negligence — i. e., wrongful performance of its contract by starting the fire-must be added the negligent efforts made by the shipyard in its duty to extinguish it — a duty which, by its nature, continued after the initial event. If the tug owner’s action in twice attempting to extinguish the fire by these simple means and twice believing that the job was done, was imprudent, it varies none in quality or character from the similar and post event breaches by the shipyard. In such a situation to visit all of the consequences on the innocent property owner whose only “duty” to act came into being because of the contractor’s initial and subsequent wrongs merely because he cannot adequately separate them would be harsh indeed and completely out of keeping with the fаirer and more enlightened admiralty rule of divided damages.
Reversed and remanded with directions.
Notes
. Garrett v. Moore-McCormack Co., 1942,
. Pope & Talbot, Inc., v. Hawn, 1953,
. W. E. Hedger Transрortation Corp. v. United Fruit Co., 2 Cir., 1952,
. By stipulation and pretrial order, these skilled counsel, normally proctors before this same judge, followed the traditional admiralty practice of trying this Civil Action (jurisdiction based on diversity) as though it were a libel on the question of liability only, reserving the issue of damages for a Master.
. “But now what is the situation with respect to contributory negligence? * * * Now it seems to me that a reasonably prudent man at that time [3:00 p.m.] having knowledge that at 1:00 o’clock this same thing occurred that water was thrown on it, and that it recurred, would have taken some further steps and was required to take some further steps to ascertain the origin of the smoke. Now we go beyond that. He advised the chief engineer of what had occurred. At about 5:00 o’clock, * * * the chief engineer discovered smoke a third time. He knew then that on previous occasions smоke had been seen in that same vicinity and it’s almost incredible that under those circumstances a man would simply content himself by again throwing a couple of buckets of water * * *. I’m satisfied that the evidence establishes that the fire was caused by negligence on the part of the shipyard concurring with the negligence of the members of the crew of the vessel as the proximate cause in producing the damage. I think there must be a judgment for the defendant in the matter.”
. The Court adopted defendant’s рroposed supplemental conclusions of law IV and V prepared and served as required by Buie 2(d) of the District Court after the Order Overruling the Motion for New Trial:
IV.
“Defendant’s employees were negligent in starting the ‘hot work’ before wetting down the area around the pipe. Such negligence was, however, only a condition of the ultimate damage, not the cause, and was passive or secondary as contrasted to plaintiff’s active and primary negligence. P. Dougherty Co. v. United States, 3 Cir., 1953,207 F.2d 626 .
V.
“The еfficient, active and primary cause of the fire was the negligence of plaintiff in failing to take proper steps to guard against fire aboard the vessel after *951 having soon smoke on three separate occasions at two hour intervals; in failing to advise defendant of having seen smoke aboard the vessel on these occasions, and in leaving the vessel unattended without notice to defendant. This negligence bars any recovery by plaintiff herein. 38 Am. Jur., verbo ‘Negligence’, § 185; Hughes v. Lyon Lumber Co., 1925,2 La.App. 365 .”
. Restatement of the Law of Torts, § 918. “Avoidable consequences. (1) * * * A person injured by the tort of another is not entitled to recover damages for such harm as he could have avoided by the use of due care after the commission of the tort * * Hence contributory negligence either precludes recovery or is no defense at all to a claim for compensatory damages. On the other hand, the rule stated in this Section applies only to the diminution of damages and not to thе existence of a cause of action.”
25 C.J.S., Damages, § 32, “Avoidable Consequences”; § 33, “Duty to Prevent or Reduce Damages in General”; § 34, “Breach of Contract”; § 35, “Injury to Property”. § 33, “As a general rule * * * tliere can bo no recovery for losses which might have been prevented by reasonable efforts on the part of the person injured * * *. The rule is a general one, applicable alike to actions in tort and on contract; and does not, in the absence of statute, depend on the nature of the action which the injured party seeks to maintain.” § 35, “Injury to Property. As a general rule * * * one whose property is endangered or injured by the wrong or negligence of another must exercise reasonable care to protect it from further injury; and especially is this rule true where notice of the wrong or injury has been brought home to the party seeking to recover damages, and he has taken no steps to protect himself from further loss.”
15 Am.Jur. Damages, Chapter E, Duty to Prevent or Minimize Damages, §§ 27, 28, 30, 40. § 40: “ * * * the law will not allow one to sit idly by and see his property destroyed through forces negligently set in motion by another and then collect damages occasioned by his own failure to make reasonable exertion to arrest such disaster.”
. Application of the doctrine by a federal court sitting in Louisiana for non-maritime damage occasioned on Louisiana land will not offend Louisiana policy, see, e. g., Adam v. English, La.App.1945,
, See also McCormick on Damages, supra, at pр. 127, 128, “ * * * it is important that the rules for awarding damages should be such as to discourage even persons against whom wrongs have been committed from passively suffering economic loss which could be averted by reasonable efforts, or from actively increasing such loss where prudence would require that such activities cease * *. The present rule is frequently described in the cases as a rule which imposes a ‘duty’ to minimize damages, and the expression is a convenient one. However,, it has been pointed out that the ‘duty’, if it can be so-called, is not one for which a right of action is given against the person who violates it * *■ * Some judges and writers have considered the present rule as but an application of the principle which denies liability for injurious consequences which are not proximately caused by the defendant’s wrongdoing. * * * Oftentimes, however, it is obvious that the defendant’s wrongdoing is an active and substantial factor in producing the plaintiff’s loss, even though that loss could have been аvoided by activity on the plaintiff’s part. * * To base it on the ground that the defendant’s wrongdoing, though a substantial cause in the popular sense, is not the ‘legal’ or ‘proximate’ cause of the avoidable loss, seems needlessly artificial and likely to obscure the underlying motive for the rule.” [Emphasis the author’s.]
To Prosser, Law of Torts, Second Edition, 1955, § 51, Contributory Negligence — Distinguished from Avoidable Consequences, the basic criteria is a practical and working one: “It may be suggested that the underlying basis for the distinction is merely the practical feasibility of assigning a part of the damages to the defendant’s negligence alone in the latter case. Here as elsewhere the Courts have been willing to apportion damages to separate causes when a logical basis may be found. In the ‘avoidable consequence’ cases, the initial damage cannot logically be charged to the plaintiff’s own negligence as a cause, while the later damages may be. * * * it is suggested, thereforе, that the doctrines of contributory negligence and avoidable consequences are in reality the same, and that the distinction which exists is rather one between damages which are capable of assignment to separate causes, and damages which are not.”
. The following cases disallow damages in part apparently on notions of contributory negligence: In re Pennsylvania Railroad Co., supra, at
The following emphasize lack of proximate cause: The Roman Prince, D.C.S.D.N.Y.,
The following apparently treated as avoidable consequence or with no clear indication of the theory: The Mascot, 3 Cir.,
The following cases seem to treat it as one for normal divided damages: In re Pennsylvania Railroad Co., see above; Constantine & Pickering Steamship Co. v. West India Steamship Co., D.C.S.D. N.Y.,
. Obsessed, presumably, with tbe engaging prospect of pressing for and resisting the adoption within this Circuit of the Hedger rule, these skilled advocates, in their preoccupation, in their briefs in this Court and apparently in the Court below, treated it as a matter of liability with not even incidental, casual reference to the doctrine of avoidable consequences or citation of any of the material discussed by us in notes 7 to 10, inclusive, and the text related to them.
. As this involves appraisal of the reasonableness of the tug owner’s conduct and the extent of physical damage either done or avoidable at various stages, e. g., between 1:00 p.m. and 3:00 p.m., between 3:00 p.m. and 5:00 p.m., after 5:00 p.m., etc., and not a mere itemization and mathematical accounting on the basis of precise directions as to responsibility ordinarily undertaken by Commissioner or Master, it is clear that Court and counsel, under the original stipulation intended that all such basic legal questions were to be determined by the Court. Neither the peculiar twist taken by this-case nor our remand is to reduce or restrict the issues for trial by the Court or expand those for determination by the Master, Fed.Rules Civ.Proc. rule 53 (b), 28 U.S.C.A.
. See Prosser, supra, at page 287:
“ * * * In the ‘avoidable consequence’ cases, the initial damage can not logically be charged to the plaintiff’s own negligence as a cause, while the later damages may be. If no such division can be made, the plaintiff’s negligence will bar all recovery, notwithstanding that it is subsequent in point of time to that of the defendant.40” Footnote 40 states: “40. See the interesting ease of continuing negligence of both plaintiff and defendant, with progressive damage to the plaintiff’s cattle, in Atchison, T. & S. F. R. *955 Co. v. Merchants’ Live Stock Co., 8 Cir., 1923,293 F. 987 , where recovery was denied ‘because it is impossible to determine the amount of damage respectively caused by the negligence of each.’ ”